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Family private international law – problems in England and Wales

April 2013 saw the UK government remove public funding through the recently renamed Legal Aid Authority from private law work and representation unless domestic violence of a serious nature is revealed. For years as part of the legal culture and representation of parties before the courts of England and Wales many Mother or Fathers were represented as applicants and respondents to applications for relocation cases from England and Wales, formerly known as leave to remove from the jurisdiction.

As people’s relationships within or without marriage beget children and one of the parties to the relationship nowadays is often from outside England and Wales, relocation applications are on the increase where one party to the former relationship in essence wants to go home, inevitably seeking to take the children of the former relationship permanently with them.

Courts of England and Wales are already faced with these such applications by those representing themselves with respondent also representing themselves. There will be times when both likely middle income parties at least will be represented either with solicitor and solicitor or counsel advocate or through direct access to counsel advocate but many will not afford such luxury with the expensive of many preliminary hearings and will now no longer have such access to legal aid representation at all. This is already having an impact.

Judges of England and Wales on preliminary hearings will have to ascertain if the court service must pay for an interpreter where one party is not represented and needs such due interpretation and give consideration as to expert reports on by example, immigration into the UK where one party can anyway no longer remain in the jurisdiction or expert reports where a proposed relocation is to a non Hague Convention country and the Judge reasonably needs to know if any final orders of England and Wales especially where there will likely be an order for vacation contact, can be registered abroad at all. The reality of registration abroad may impact upon whether relocation is or is not granted.

Ordinarily either the privately funded party or the legally aided party could incur a likely reasonable expense for such necessary expert reports through their own privately paying pockets or their legal aid certificate with prior authority. Even with the spill over from public law changes and a reduction of experts in that process and the private law relocation courts only seeking expert reports where absolutely necessary, there will be times when a Judge requires such expert guidance nevertheless.

With two parties without any representation there can be no letter of instruction other than from the court and no one is actually going to be reasonably able to arrange such expert instruction never mind actually pay for it.

A further problem is that when such applications some years ago were infrequent the jurisdiction of such cases pursuant to historic case law meant that ninety percent of these such cases were perhaps heard by High Court Judges of England and Wales assigned to the Family Division. This is very much no longer the case with properly and inevitably Family County Courts across England and Wales entertaining such applications before Circuit Judges and even District Judges. This on one hand is all well and good but on the other hand there have been instances where such Judges are not reasonably enough au fait perhaps with issues of habitual residence, the powers of their own court never mind the jurisdictions of foreign courts and have insufficient experience of Hague and Wardship jurisdiction of an international nature to reveal a confidence when dealing with these applications albeit they remain listed before themselves and are retained there.

The Judicial Studies Board of England and Wales has to acknowledge a need to assist the County Court Judges by further training otherwise those who represent themselves may find the well meaning Judge compounds their concerned applications and responses by being not adequate enough in all reality to offer a final decision with reasoned judgment after all.

 

Jeremy Rosenblatt is a Barrister at 42, Bedford Row, London specialising particularly in child and international child law.

He has over sixty reported cases and is the author and co-author of some four books in this area.

jeremy.rosenblatt@42br.com


13.09.2013